Kamha v Australian Prudential Regulation Authority

REASONS FOR JUDGMENT 1 I delivered judgment in this matter on 22 April 2005 ([2005] FCA 480) and stood it over until today to enable me to consider the orders to be made. 2 Two issues arise. The first is costs. On the one hand, the applicant submits that it has, in substance, obtained complete relief and is entitled to its costs. The respondent submits that the point upon which the applicant succeeded is a small proportion of the case and that, when the progress of the case is analysed, justice would be done if an order were made that the first respondent pay one-third of the applicant's costs and that the applicant pay two-thirds of the first and second respondents' costs. 3 In my opinion, the applicant is closer to the mark than the respondent on this point. It did obtain substantive relief and did prevent the disqualification which was looming. The fact that it failed upon the power point did not disentitle it to the ordinary general costs of the action. However, the other grounds which I declined in my discretion to consider do give rise to a somewhat unusual situation. They undoubtedly took up the bulk of the time that the case occupied. There is no doubt that they expanded and were refined (although not limited) as the case went on. In my opinion, given the existence of the alternative remedy to which I referred in the judgment, it was a very long bow to think that those matters would be agitated to a conclusion. 4 On the other hand, the point is made by the applicant that it was not until well into the case that the respondent raised any real objection to these matters being determined. It is the applicant's contention that the general shape or scope of the case was apparent at the time of the interlocutory hearing and at the time when the matter was fixed for urgent final hearing. The fact that the case developed somewhat thereafter did not change its central nature and it is, in any event, to be anticipated. 5 On the other hand, when the matter was raised on behalf of the respondent the applicant showed no signs of desisting, argued against any precipitate end to the case and proceeded to complete its case. It is possible that, if the point had been taken earlier and with more insistence by the respondent, then the judge who dealt with the interlocutory aspects or myself may have been inclined to decide earlier that those aspects would not be proceeded with. That, however, is speculation. 6 Taking all of these matters into consideration, my order will be that the first respondent pay 50 per cent of the applicant's costs. 7 The second issue which needs to be discussed is an application on behalf of the applicant which has been put in various alternatives in the proposed draft short minutes aimed at holding the fort in relation to any ultimate disqualification and having in mind the possibility of appeal. It has been submitted that there is power in the Court pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) to frame relief of this kind, even in anticipation. I have been referred to authority which is said to support that proposition which, it is said, goes further than appellate jurisdiction to preserve the subject of an appeal. 8 The respondent argues that even if there is such jurisdiction, it ought not to be exercised in the present circumstances where the orders of the Court effectively dispose of the matter at issue. In my opinion, the respondent's position is correct on this point. 9 In my view, the appropriate order is that the decision of the first respondent to disqualify the applicant be set aside. Convenient as it may have been for the purposes of argument to divide up what was done, the first respondent by its delegate plainly decided to disqualify the applicant, although a distinction was sought to be drawn between that decision and the ultimate implementation of it, and that decision is thus set aside and the matter to which it relates should be remitted for further consideration. 10 That seems to me to leave the matter, so far as I am concerned, in the situation that the decision does not exist, but the matter before APRA does exist and must be dealt with. How it is dealt with by it and how the law works its way through is another matter. I do not think that it is appropriate to intervene in any quia timet fashion at the moment, even if I have power to do so. 11 Therefore the orders of the Court are as follows: (1) The decision of the first respondent by its delegate the second respondent of 16 February 2005 under s 25A of the Insurance Act 1973 to disqualify the applicant be set aside.